Chief Executive, Office of Environment and Heritage v Fish - [2014] NSWLEC 67 - NSWLEC 2014 case summary — Zoe

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Chief Executive, Office of Environment and Heritage v Fish

[2014] NSWLEC 67

Land and Environment Court (NSW)|2014-02-14|Before: Pain J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2014-02-14

Before

Pain J

Catchwords

(2010) 179 LGERA 386 Hoare v R [1989] HCA 33
(1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v R [2005] HCA 25
(2005) 228 CLR 357 Muldrock v R [2011] HCA 39
(2011) 244 CLR 120 Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 Pelechowski v Registrar of the Court of Appeal [1999] HCA 19

Source

Original judgment source is linked above.

Catchwords

(2010) 179 LGERA 386 Hoare v R [1989] HCA 33(1989) 167 CLR 348 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Markarian v R [2005] HCA 25(2005) 228 CLR 357 Muldrock v R [2011] HCA 39(2011) 244 CLR 120 Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 Pelechowski v Registrar of the Court of Appeal [1999] HCA 19(1999) 198 CLR 435 Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64(2013) 195 LGERA 14 R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383 Rahme v R (1989) 43 A Crim R 81 Veen v R [1979] HCA 7(1979) 143 CLR 458 Veen v R (No 2) [1988] HCA 14

Judgment (24 paragraphs)

[1]

Sentence for plea of guilty to charge of failure to comply with statutory order

1The Defendant Mr Fish has pleaded guilty to the charge that he failed to comply with an order of the Land and Environment Court in breach of s 206 of the National Parks and Wildlife Act 1974 (NPW Act). The Court's order was made on 9 August 2010 under s 205 of the NPW Act following the Defendant's conviction for an offence under s 118D of the NPW Act in Gordon Plath of the Department of Environment and Climate Change v Fish [2010] NSWLEC 144; (2010) 179 LGERA 386 (Fish (No 1)). That offence was knowingly causing damage to the habitat of a threatened species, koalas. The offence was committed in the course of ecological consultancy work carried out by Orogen Pty Ltd (Orogen). A plea of guilty means that the essential elements of the offence are admitted by the Defendant. 2Pursuant to s 205(1)(c) of the NPW Act Orogen was to conduct targeted assessment of koala utilisation of potential koala habitat in four koala management units (KMUs) of the Port Stephens Local Government Area (Salamander Bay, Salt Ash, Williamtown and Tomago). The work to be contributed by the Defendant to each geographic part of the project was described as project management. The total value of the work to be contributed by the Defendant was estimated to be $26,400. The total value of the work contributed to the whole project, minus the Defendant's contribution, was estimated to be $136,080. The project was to be completed by 9 December 2011. The order provided for the matter to be referred back to the Court if variation of the timetable for the work was considered necessary; see Fish (No 1) at [135], [136] and [143]. 3Orogen is in liquidation. Accordingly, no proceedings have been brought against the company. The Defendant was charged in Fish (No 1) in his capacity as a director of Orogen by reason of a 175B(1) of the NPW Act: [1]. The Defendant represented himself for the sentence hearing. 4This is the first prosecution brought under s 206 of the NPW Act since the provision came into force on 2 July 2010. A similar provision exists in s 251 of the Protection of the Environment Operations Act 1997. The Prosecutor informs me that no prosecutions have been brought under that section. 5Sections 205 and 206 of the NPW Act provide: 205 Additional orders (1) Orders The court may do any one or more of the following: ... (c) order the offender to carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit, ... (2) Machinery The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. ... 206 Offence A person who fails to comply with an order under this Division (except an order under section 201 or 203) is guilty of an offence. Maximum penalty: (a) in the case of a corporation-1,100 penalty units for each day the offence continues, or (b) in the case of an individual-550 penalty units for each day the offence continues.

[3]

Factual circumstances 6A Statement of Agreed Facts (SOAF) with the accompanying attachments was tendered by the Prosecutor (exhibit A). The circumstances of the offence are finally dealt with in the Further Statement of Agreed Facts (exhibit B). As these are lengthy I include a summary prepared by the Prosecutor which identifies the following key facts by reference to exhibit A: (a)During the course of sentencing for the offence under s 118D of the NPW Act, the Defendant and Orogen proposed that they complete the Koala Habitat Mapping Project outlined at Attachment 1 of the SOAF in lieu of any other penalty being imposed. The value of work to be carried out by the Defendant, not in a personal capacity but as director of Orogen, was estimated to be $26,400, par 5. (b)On 9 August 2010, Pain J made the order subject of the proceedings, par 6. (c)The Defendant then commenced work towards the project in good faith, par 8-15. (d)Between September 2010 and December 2010, the Defendant convened four meetings of the Port Stephens Council Koala Habitat Project Committee (Committee). In October 2010 the details of the project were discussed and the methodology was revised. These changes were supported by Committee participants in principle, with the Defendant to consider changes to the project timeframes, par 15. (e)Around December 2010 a decision was made to split the Queensland based business from Orogen so that the Defendant would become sole director. Debts were split evenly, par 17. (f)In February 2011, the Defendant put to the Committee a proposal for an amended project proposal with an amended timetable for completion. The Committee was supportive in principle to this extension of three weeks. The Defendant and Orogen advised they would approach the Court to vary the Court's orders to allow an extension of time, par 20. (g)Between February 2011 and November 2011, field work was undertaken by Orogen staff and preliminary mapping was done by the Australian Koala Foundation (a third party non-government organisation). A draft map was prepared, par 21. (h)By the end of June 2011, Orogen had difficulty obtaining new work. Around September 2011 Orogen ceased paying the Australian Koala Foundation for the work it was engaged to do pursuant to the project (Attachment 17). (i)In November 2011, Orogen moved offices to reduce costs. Orogen also made redundant its only in-house ecologist. A further Committee meeting was held on 10 November 2011, par 30, 31. (j)On 9 December 2011, the due date for the completion of the project, no KMUs had been completed. However, substantial progress had been made towards completion of the first KMU (the Defendant described it as about "3/4" done (Attachment 11)). (k)In early 2012, business conditions had improved for Orogen, par 34. (l)In May 2012, following further discussions between the Committee members, the Office of Environment and Heritage (OEH) suggested again that the Defendant approach the Court to update it on the issues and propose a revised timetable, par 40. The Defendant agreed to this. (m)From April 2012 the Defendant prioritised keeping Orogen running over the commitments in relation the Court's order, par 45. (n)In late June 2012, the Defendant placed Orogen into voluntary liquidation due to its inability to meet its financial obligations, par 45. As at that date the Australian Koala Foundation was owed $51,627 in unpaid fees for work it was engaged by Orogen to carry out to complete the project, par 46. (o)The Defendant incurred around $33,360 worth of his time (calculated at his professional rate) in attempting to complete the project (Attachment 19). This equates to about 9.5 hours per month on the project over about 22 months from the date of her Honour's decision imposing the order and the date Orogen entered liquidation. The Defendant did not spend any of his personal money on the project, par 49.

[5]

Sentencing considerations 10The NPW Act provides a legislative template for assessing the objective circumstances of the offence. Section 194 of the NPW Act provides: 194 Sentencing-matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area-the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant. 11The Prosecutor submitted that s 194(2) would allow the Court to take into account the matters discussed below, including the financial harm caused to third parties as a result of the offence. The Prosecutor submitted there are no aggravating factors identified in s 21A(1) of the CSP Act in this case. I set out most of the Prosecutor's submissions throughout the judgment as these were relevant and I generally agree with them. Where I do not agree I will so state. The Defendant made few submissions.

[7]

The nature of the offence 13The Prosecutor submitted that in determining the objective seriousness of the offence, it is appropriate to have regard to the nature of the offence. The present offence bears similarity to the common law offence of contempt of court where a court order is not complied with. The underlying purpose of the exercise of the power of the Court to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced. Kirby J in Pelechowski v Registrar of the Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at [149] described it as follows: Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result" [Registrar, Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 318; R v Sergiou (1983) 5 Cr App R (S) 227]. Obviously, the culpability of the contemnor is relevant to the order which must be made [Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98] . The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner. 14In the Prosecutor's submission, the present offence is designed to ensure that the authority of the Court in ordering "alternative" sentencing mechanisms under s 205 of the NPW Act is not undermined. In this sense it is not an administrative or technical breach of the Act. I agree. 15I also consider that some analogy can be drawn with the law of contempt particularly in relation to the Defendant's state of mind in committing the offence, but to a limited extent only. Contempt proceedings may be civil or criminal in nature. Civil contempt can be considered criminal if found to be contumacious. This offence could not be considered to arise from a contumacious approach by the Defendant for reasons I give below. Whether this is analogous to criminal contempt because the contempt can be said to arise in criminal proceedings I am not aware and have not been addressed on this issue by the Prosecutor. The differences between civil and criminal contempt were explored in Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23]. As the nature of any contempt is not a matter I need to resolve in order to sentence in this matter I will not further consider the differences between civil and criminal contempt. I will be sentencing in accordance with the CSP Act and s 194 of the NPW Act to the extent it can apply, as I must. I can be informed by matters which are also relevant in contempt cases because of the particular nature of the charge before me.

[9]

State of mind of defendant/reason for commission of offence 18The offence is a strict liability offence so that mens rea is not an element of the offence. A defendant's state of mind at the time of the offence is relevant to the assessment of objective seriousness. The Prosecutor submitted, adopting the classes of contempt identified by the High Court in Pelechowski, that the present offence was committed wilfully but without a specific intent to defy the authority of the Court. The Defendant was aware of the obligation and made choices which resulted in the requirements of the Court order not being met. This was not a technical, casual, accidental or unintentional breach of the Court's order in the sense described in Pelechowski. The Defendant was aware that he would be breaching a Court order. The Defendant was present at his sentence hearing in relation to the proceedings giving rise to the order and proposed the relevant project. This is dealt with in Fish (No 1) giving rise to the order under s 205. The Defendant was legally represented when proposing the order. The Defendant failed to approach the Court in relation to the delays that were occurring in completing the project despite being aware this was required. This may have resulted in an amendment of the orders or modification of the project, or its scope and costs, to allow completion of some or all of it. However, no such extension was sought despite ample time to do so and the Defendant's expressed intention to do so. The Defendant prioritised getting his business on a better footing over complying with the s 205 order from April 2012 (SOAF par 45). As a consequence, the entire project failed. The failed project resulted in the Australian Koala Foundation incurring costs of around $51,627 in unpaid fees for the project. 19I consider it is important to emphasise that the Defendant or his former company has spent a substantial part of the estimated cost of the project the subject of the s 205 order of $136,080 plus $26,400 professional costs identified in [136] of Fish (No 1). The table of actual expenditure by Orogen at tab 19 of exhibit A identifies a total expenditure of $124,210 which includes $19,200 of Mr Fish's personal professional time. The only reason provided by the Prosecutor and the Defendant as to why the Defendant did not comply with the order or return to the Court to seek a variation of the timetable was Orogen's overall deteriorating financial position. As the Prosecutor accepted these are mitigating factors relevant to the Defendant's state of mind. Challenging business conditions existed prior to the offence and after the offence continued, the latter caused in part by the damaging effect on the reputation of Orogen of the conviction in Fish (No 1) of knowingly causing damage to koala habitat. 20The Prosecutor accepted that the Defendant worked in good faith with the Committee members to complete the project and proposed an amended project outline. The Defendant stated orally to the Court that he did not return to the Court to seek a variation of the timetable for completion of the s 205 order because he did not have a proposed timetable he considered he could meet. 21The offence is not accidental, trivial or technical. Wilful is used to describe intentional non-compliance with court orders in contempt proceedings. The Defendant was not in a position financially to comply with the order and a finding of wilful must be interpreted in light of that circumstance. While the Prosecutor criticised the Defendant for prioritising getting Orogen onto a better financial footing instead of complying with the s 205 order, had he done so it is more likely the s 205 order could have been complied with. There is no express or implied intention of the Defendant to undermine the authority of the Court or escape the consequences of the principal offence, so that the Defendant's conduct is not contumacious. Indeed as a substantial proportion of the forecast cost of the s 205 order was spent it is not possible to say the consequence of the offence has been completely avoided. It also appears that the cost of the project turned out to be markedly more than the estimate at the time of Fish (No 1) another matter outside the Defendant's control. Had the original cost estimate of $162,480 been accurate the order would have been much closer to being complied with. The costs so far are $175,837 (the $124,210 actually spent plus $51,627 owed to the Australian Koala Foundation) but that is not allowing for the fact the project is incomplete given that not even one of the four proposed KMUs was completed. The SOAF states that another $100,000 would be needed to complete the project. 22I do not agree with the full extent of the Prosecutor's submissions that a consequence of this offence is an undermining of the sentence imposed in relation to the principal offence for which the Defendant was sentenced given there was no deliberate attempt by the Defendant to undermine the integrity of the criminal enforcement provisions of the NPW Act.

[17]

Even-handedness 38The Prosecutor submitted and I agree that caution must be adopted when looking at other cases as there are no mirror circumstances. The Prosecutor stated that the Court may consider that the Court's decisions in relation to contempt of court provide assistance. One difference I note between sentencing for this offence and some contempt cases is that a penalty regime may be imposed on a contemnor whereby a penalty can be deferred to take into account efforts to purge a contempt of court. Here as there is no ability to comply with the s 205 order a penalty must be imposed and paid in accordance with the timeframe specified in the Fines Act 1996 unless an application is made to the Registrar of the Court for time to pay. I note this difference because care must be taken in considering penalties imposed for contempt so that the Court is considering like with like wherever possible. Another difficulty with comparisons with contempt cases is that there is no maximum penalty against which to assess the severity of such breaches. This offence has a very substantial maximum penalty given the large daily penalty rate identified in s 206 and the length of time of the offence of many months. 39In Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 I identified a number of contempt cases showing a range of $7,500 to $50,000. Burwood Council v Ruan [2008] NSWLEC 167 at [26]-[28], provided a further guide to the range of penalties imposed for contempt in cases of wilful contempt. Higher penalties (generally over $20,000) were imposed in cases involving environmental harm or the risk of environmental harm. Biscoe J took the occurrence of environmental harm into account in Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 at [39] where the failure to comply with court orders to do building work resulted from reduced financial circumstances, inter alia. Biscoe J found at [28] that the respondent preferred his financial interests to his obligation to complete the court orders. A penalty of $20,000 was imposed with a periodic penalty of $10,000 per month for as long as the contempt remained unpurged. In Waverley Council v Tovir Investments Pty Ltd (No 4) [2013] NSWLEC 88 at [36], a sentence of $20,000 each for two charges of contempt were imposed in circumstances where the objective seriousness was greater due in part to the reason for the contempt which resulted in financial gain for the contemnor. In Environment Protection Authority v Waight [2003] NSWLEC 124 the sentence of $15,000 was suspended for six months, payment being conditional on the defendant not complying with further court orders. Given the absence of a maximum penalty by which to assess a possible range of objective seriousness in these cases compared to the substantial potential maximum penalty in this case they are of limited assistance.

[18]

Capacity to pay - application of Fines Act 40Under s 6 of the Fines Act, in the exercise of discretion to fix the amount of any fine, the Court is required to consider such information regarding the means of the accused as is reasonably and practicably available for the Court's consideration and such other matters as are relevant, in the opinion of the Court, to the fixing of that amount. 41Capacity to pay a large fine is a factor which the Court is required to consider under s 6. In Rahme v R (1989) 43 A Crim R 81 at 86 Finlay J with whom Studdert J agreed, said: The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution effect payment...It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision on whether or not the appellant has the means. 42The Defendant submitted that the Court should take into account that his ability to pay a fine is limited. He relied on an affidavit sworn on 5 March 2014 as to his financial circumstances. His affidavit states that for financial year 2011/12 his gross income from Orogen was $59,596, he is yet to lodge a tax return for that year and was advised not to do so until the liquidation of Orogen is complete. For the financial year 2012/13 his gross income was nil during which time he worked on a voluntary basis with his partner in setting up a business and relied on his partner for support. For financial year 2013/14 his gross income is $10,000 and is expected to be $20,000 by the end of the financial year. The Defendant has a debt of $8,658.88 to the ANZ Banking Group Limited, of $35,119.54 (the annexure shows $35,754.34 is owing) to the Credit Corp Group and $6,041.71 to the Citigroup Pty Ltd. He is currently in the process of establishing a payment arrangement with the debtors and will require the assistance of his partner to meet the commitments of those payments. He does not own a motor vehicle. He and his partner have a mortgage on their residence with the ANZ Bank under which they owe $348,118.41. He is facing financial hardship due to his lower income and outstanding debts. 43The Prosecutor submitted that the affidavit contains no statement of the assets held by the Defendant or his partner, it does not contain the value of the Defendant's house and the documents attached to the Defendant 's affidavit are dated 2013 so it is not clear whether that is still his current financial position, whether steps have been taken, or a payment plan entered into regarding those debts. The Defendant said in an unsworn oral response to these submissions that the house is valued at $450,000. The Defendant has not entered into a payment plan concerning his debts because he is awaiting the outcome of this matter so that it can be taken into account when preparing a payment plan. 44I accept that the Defendant has a limited financial capacity to pay a large fine and will take that factor into account in sentencing.

[22]

Appropriate penalty 50The application of a daily penalty was considered by Pepper J in Environment Protection Authority v Unomedical Pty Ltd No 4 [2011] NSWLEC 131 at [47]. The Prosecutor submitted that the approach taken to the application of the daily penalty by Pepper J in Unomedical may be appropriate in the present case. Her Honour applied the law as follows: [50] Even if a daily penalty was imposed on Unomedical, given the number of days contended for by the prosecution the amount fined would have to be so low as to be virtually negligible to avoid imposing a sanction on Unomedical that was manifestly disproportionate to the seriousness of the offence, which includes as its components, the harm caused by the commission of the offence, the state of mind of the offender and the reasons for committing the unlawful act. As discussed below, when these factors are considered, the objective gravity of the offence could not warrant, particularly when the totality of the penalty to be imposed on Unomedical is taken into account, the imposition of anything other than the most trivial of daily penalties. [51] In my view, the preferable course is not to impose a daily penalty on Unomedical, but is to take into account as a factor augmenting the objective seriousness of the offence the fact that this was not a discrete instance of emission of EtO by Unomedical, but that it occurred on multiple occasions and over a significant period of time (R v Delcaro (1989) 41 A Crim R 33 at 37-38, R v Woodman [2001] NSWCCA 310 at [29]-[30], R v Hill [2004] NSWCCA 257 at [6] and Environment Protection Authority v Lithgow City Council [2007] NSWLEC 695 at [29]). 51I consider the approach in Unomedical is appropriate in this matter also for the reasons given by her Honour in relation to the need to avoid imposing a sentence that is manifestly disproportionate to the seriousness of the offence. In the present case, the fact that the offence continued for a lengthy period of time from 9 December 2011 may be considered as a factor augmenting the objective seriousness of the offence without the Court imposing a specific daily penalty. 52I consider the appropriate level of penalty is $50,000 which should be reduced by 50 per cent in light of the Defendant's subjective circumstances to arrive at a penalty of $25,000. 53The Defendant may make an application to the Registrar of the Court for further time to pay any fine imposed under s 10 of the Fines Act.

Chief Executive, Office of Environment and Heritage v Fish

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